Police v Tofilau [2013] WSSC 58 (9 September 2013)

SUPREME COURT OF SAMOA

Police v Tofilau [2013] WSSC 58

Case name: Police v Tofilau

Citation: [2013] WSSC 58

Decision date: 9 September 2013
Parties:
Police (Prosecution) and Keliki aka Gerrit Tofilau male of Moamoa and Iva, Savaii (Accused)

Hearing date(s):

File number(s): S2032/12

Jurisdiction: CRIMINAL

Place of delivery: Mulinu’u

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
L Su’a and O Tagaloa for prosecution

Catchwords:
Words and phrases:
Indecent

Legislation cited:
Cases cited:
Police v Ioane [2007] WSSC 74
Police v Pesamino [2006] WSSC 8
Police v Talitua [2005] WSSC 19,
R v Taylor and Others [1997] 3 A11 E R 527.
Police v Mire Kurene

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S2032/12

BETWEEN:

P O L I C E

Prosecution

A N D

KELIKI also known as GERRIT TOFILAU male of Moamoa and Iva, Savaii.

Accused

Counsel: L Su’a and O Tagaloa for prosecution

Accused in person

Sentence: 9 September 2013

S E N T E N C E

The charge

1. The accused appears for sentence on the charge of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years pursuant to s.53(1) of the Crimes Ordinance 1961. The maximum penalty for this offence is 7 years imprisonment. To the charge the accused pleaded guilty at the earliest opportunity.
2. In a number of past cases before this Court, for example, Police v Talitua [2005] WSSC 19, Police v Pesamino [2006] WSSC 8 and Police v Ioane [2007] WSSC 74, I referred for the purpose of passing sentence in this kind of case to the decision of the English Court of Appeal in R v Taylor and Others [1997] 3 A11 E R 527. In that case Lawton LJ said at p.529:

“The Court now has the task of deciding how the law should be administered. It is clear from what the learned trial Judge said that there is doubt amongst many at the present time, as to what is the proper way of dealing with these cases. What does not appear to have been appreciated by the public is the wide spectrum of guilt which is covered by the offence known as having sexual intercourse with a girl under the age of 16. At one end of that spectrum is the youth who stands in the dock, may be 16, 17 or 18 years of age, who has had what started off as a virtuous friendship with a girl under the age of 16. That virtuous friendship has ended with them having sexual intercourse with one another. At the other end of the spectrum is the man in a supervisory capacity, a schoolmaster or social worker, who sets out deliberately to seduce a girl under the age of 16 who is in his charge. The penalties appropriate for the two types of cases to which I have just referred are very different indeed. Nowadays, most Judges would take the view, and rightly take the view, that when there is a virtuous friendship which ends in unlawful sexual intercourse, it is inappropriate to pass sentence of a punitive nature. What is required is a warning to the youth to mend his ways. At the other end, a man in a supervisory capacity who abuses his position of trust for his sexual gratification, ought to get a sentence somewhere near the maximum allowed by law, which is two years imprisonment. In between there come many degrees of guilt. A common type of offender is the youth who picks up a girl of loose morals at a dance, takes her out into the local park and behind the bushes, has sexual intercourse with her. That is the kind of offence which normally is dealt with by a fine. When an older man in his twenties, or older, goes off to a dance and picks up a young girl, he can expect to get a much stiffer find, and if the girl is under 15 he can expect to go to prison for a short time. A young man who deliberately sets out to seduce a girl under the age of 16 can expect to go to detention. The older man who deliberately so sets out can expect to go to prison. Such is the wide variety of penalties which can be applied in this class of case”.

3. What is said by Lawton LJ in R v Taylor and Others [1997] 3 A11 E R 527, 529, provides, in my opinion, a useful and helpful approach to passing sentence in cases of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years. However, not every detail of that approach is applicable to Samoa and that must be borne in mind. The approach must be applied bearing in the circumstances which exist in our own country.

The offending

4. According to the prosecution’s summary of facts, on Friday night 26 October 2012, the victim was at home with her family. At about 2am the victim was sleeping while her brother was outside on the porch of their house. At that time, the accused came to the victim’s brother and talked with him. The victim’s brother then fell asleep on the porch and the accused woke him up and suggested to him that they go into his bedroom to sleep. They then went into the bedroom of the victim’s brother and the victim’s brother fell asleep.
5. While the victim’s brother was asleep, the accused got up again and went into the victim’s bedroom. He woke up the victim and then asked her to move to the other side of the bed so he could lie down next to her. The accused then laid down next to the victim. He then started to kiss her and fondled with her breasts. He also kissed her breasts. Eventually they engaged in sexual intercourse.
6. While the accused was still on top of the victim, the victim’s brother entered the room and turned on the light. The accused got off and fled from the victim’s house.
7. In the victim’s impact report, the victim says that she used to like the accused as a friend because he was her brother’s friend. Since this happened, she no longer likes the accused or thinks of him as a friend.
8. In the pre-sentence report, the accused told the probation service that the victim was his girlfriend and they had a relationship. On the night in question, he talked with the victim in her bedroom. Eventually they had sexual intercourse with the consent of the victim. They were caught in the act by the victim’s brother.

The accused

9. The accused is 18 years old. At the time of this offending he had a job but since this incidental he is no longer employed. He does not drink alcohol or smoke. He finished school at Year 12.
10. As it appears from the pre-sentence report, the accused told the probation service that he and the victim are from the same village and they attend the same church. That was how they came to know each other and became friends.
11. The accused is also a first offender. His father told the probation service that the accused is a responsible person who is always committed to whatever work he is told to do. The written testimonials from the church minister of the accused’s village shows that the accused is a reliable member of the Church Youth Group and is very active and supportive of the Youth Groups activities. The written testimonial from the pulenu’u of the accused’s village shows the accused to be always supportive of village activities and is habitually goes to church. Thus, it appears that the accused was a person of good character prior to his commission of this offence.

The victim

12. The victim is now 13 years of age but was 12 years at the time of this offence. She is still attending school. As a result of this incident, the victim’s parents have become extremely protective of their daughter.

Aggravating and mitigating features

13. In relation to the offending, the aggravating features, apart from the intrinsic nature of the offending, are the young age of the victim. The mitigating features of the offending are that the accused told the probation service and this Court that the victim consented to sexual intercourse and it was the victim who “sneaked” him into her bedroom. The victim’s brother had also allowed the accused into the house. I would not describe this as “home invasion” which occurs in cases of robbery of the owner of a dwelling house. There is really no other aggravating factor relating to the offending. The only mitigating factors in relation to the offending is that the victim and the accused were friends, boyfriend and girlfriend, as the accused puts it.
14. In relation to the accused as offender, there is no aggravating feature. But there are mitigating factors personal to the accused. These are the young age of the accused, the fact that he is a first offender and was a person of good character prior to the commission of this offence, and the accused’s guilty plea at the earliest opportunity.

The decision

15. Having considered all the circumstances, I have decided not to impose a custodial sentence. The starting point for sentence approach is therefore not appropriate in this case. In also bearing in mind the guidelines stated in R v Taylor and Others [1997] 3 A11 E R 527, 529, the accused is given a suspended sentence of 6 months and ordered to pay Court cost of $100 and prosecution costs of $75 within 7 days. This should send a sufficient warning to the accused to mend his ways. A similar sentence was passed by Nelson J in Police v Mire Kurene (2013) (unreported decision delivered on 19 March 2013) where the 20 year old accused was convicted of having sexual intercourse with a 15 year old girl and given a suspended sentence of 6 months.
    

CHIEF JUSTICE

Solicitor

Attorney-General’s Office, Apia for prosecution